Sri Lankans have suffered serious set-backs for the past several decades due to impunity. It is becoming an increasingly difficult crisis beyond redemption. Government loses billions due to corruption, mismanagement and misappropriation of State funds. There is a conspicuous absence of investigation, justice or punishment. Robert Rothberg, a leading scholar of failed States had said that even when a State is weak, failing, failed or collapsed, “ruling families and cadres arrogate to themselves increasing portions of the available pie”.

All these constitute serious breaches of government’s obligations. The failure by public authorities to bring perpetrators to book by imposing punishment and their reluctance to grant redress to victims is the simple definition of ‘impunity’. Impunity inheres where there is a deficit of democratic structures of accountability, fairness and impartiality.

Origins of impunity in Sri Lanka could be directly traced to the concept of presidential immunity in the 1978 Constitution.

Cartoon added by TW from Internet

Presidents could not be sued during the pendency of the term, whether civil or criminal, prior to the enactment of the 19th Amendment. It was spoofed that the even the spouse could not have even filed a divorce suit, in the least.

Higher appointments

Furthermore, both the 1972 and 1978 Constitutions had included provisions for politicians to make higher appointments to the judiciary and the public service. The Constitutionally the Executive President wielded enormous power. It had subsequently invaded into all other areas in government. Chief Justice, Attorney-General and the other key appointments were made at the behest of the President. President appoints the members of the Judicial Services Commission (JSC) too. It is the JSC, which is entrusted with the powers to appoint promote, transfer, disciplinary control and dismissal of judicial officers in the lower Courts.

18th Amendment

Impunity is the indicator of the absence of institutions that promote pluralism, participation, impartiality, accountability and fairness. The 18th Amendment was a manifestation for the consolidation of wider powers to the Executive President. This was passed in Parliament with 161 voting in favour and 17 against. This created further isolation between the ruled and the ruler.

Members who crossed over from the Opposition from time to time had been made Cabinet Ministers, the ‘country with the largest Cabinet’ in the whole world. “If sheep elect wolves to be their shepherds, then they deserve to be eaten” – Anonymous. During the past few decades, politicians, their henchmen and government servants with direct accessibility to power and authority or friends, relations and children of those in power, if they had committed wrongful acts, such as criminal, civil, administrative, had not been brought under investigation or inquiry. Perpetrators had escaped arrest, prosecution and so forth. Impunity was consequently a creation by the State. President has the power in terms of Article 34 of the Constitution to grant a pardon to an offender convicted in any Court. A wife of former minister, Milroy Fernando, had been sentenced to death for double murder by the Colombo High Court. She had been freed on a Presidential pardon to mark International Women’s Day along with two foreign nationals, who had been convicted for drug offences! Many more who have been convicted similarly are yet languishing in jails!Why?

Furthermore, other victims, who had suffered numerous ordeals due to impunity, suffer endlessly without any of hope of being able to see justice and fair play. Ending impunity and building justice is a distant dream unless there is meaningful political consensus to strengthen rule of law and to restrain abuse of power.

Due to political interference and manipulation, Police, the Attorney-General and the Judiciary, had ample room for criticism, and had acted with bias without taking appropriate measures against perpetrators. The authorities thereby had overlooked prosecution, trial and suitable punishment in terms of the law. The Attorney-General is the country’s principal prosecutor, who plays a crucial role within the criminal justice system. Due to endless politicisation of the Attorney-General’s office, there have been serious allegations that the Attorney-General too had contributed to the strengthening of the culture of impunity in the country.

The independence of the judiciary has been manipulatively exenterated; which had seriously impacted the rule of law. There had been broad consensus that the concentration of intense powers in one individual with immunities attached had been inimical to the Constitutional balance of powers. Culture of impunity has accordingly been institutionalised, systemised, at their will, with reduced accountability and transparency. The presidential system guaranteed a political system – “the winner takes it all” and favoured anti-democratic dictatorial politics.

Aren’t there two types of immunities the world over? Our MPs too, like in the UK, the USA, Australia, New Zealand and Canada, are by law, have immunity in Parliament to take part in debates without entertaining fears or worries about lawsuits. Remember, immunity beyond that would be controversial. Parliamentarians like Mervyn Silva and many others enjoyed Parliamentary privilege while enjoying unwritten benefits of impunity outside the precincts of Parliament. How about their children and similar mischief-makers who broke law and created quarrels in night clubs, without appropriate legal action against them?

Unlike in developed countries, we have diverse examples where crooks, fraudsters, liars and the like contesting political office having agreed to abide by the 12th March Agreement. On the other hand, the people elected by the present regime to work effectively, to provide solutions to an ailing democracy to restore good governance and rule of law. Shouldn’t they remember that they too are under the microscope? Citizens, international community, potential investors and the like are also watching us.

Why do they grossly abuse power for petty political gain? They must approach the issues before them by suggesting some general principles through which society could be guided towards greater humanism, rule of law, spirit of consultation, moralisation and improved welfare of the ruled (not the ruler alone), more equitable sharing of scarce resources and responsible use of public power. “It can never be lawful for any man to do wrong: but we fall into a great mistake in the use of that word: for we consider a thing to be lawful, which anyone may do with impunity” – Cicero.

We also had a Prime Minster, who had been accused of issuing a letter to Customs authorities to release a container with contraband. We also had powerful politicos, who had denied wrong-doing and involvement even after the Customs had revealed that there had been container loads of Ethanol imported illegally. Minister Bathiudeen had allegedly threatened the Mannar District Judge Anthony Pillai after the Judge had ordered the arrest of a group of men, alleged to be supporters of the Minister. The Minister had telephoned the judge to change the verdict and when the judge had refused to comply with the minister’s request a group allegedly under the political patronage of the minister, pelted the court building and had set fire to a section of the building. Police had produced a B report that the attackers had caused damage amounting to Rs. 1.4 million.

IMPUNITY ON A LARGE SCALE!

Our politicos cleverly abuse and manipulate political office with efficiency and effectiveness to maximise the outcomes to themselves and their kith and kin. All these had finally led, to the erosion of rule of law and to bad governance; the loss of public trust in law enforcement authorities and State institutions.

In Sri Lanka, impunity has now become an integral part in day to day governance. We have experienced instances where elected representatives had taken the law into their own hands and escaped, without being punished due to impunity.

Shouldn’t the President consider creation of an independent office of the Attorney-General accountable to Parliament as in the case of Secretary-General of Parliament, Auditor-General and the Commissioner-General of Elections under the present circumstances? If so, AG will be able to handle his onerous duties with professional rectitude and fearlessness.

President and the Prime Minster should be conscious that the dilemma they face is politically volatile in post-war Sri Lanka; as impunity is corrosive. People suffer at the hands of the Police and other bureaucrats, without redress. Women do not venture out at night. There are senseless killings, bribery, torture and so forth. Also indifferent or hostile public officers, including dangerously low Policing. Ongoing trends therefore favouring impunity must be reversed without delay. The government should also facilitate the judiciary to hear corruption and criminal cases and so forth through a ‘rapid response mechanism’ for timely action against IMPUNITY.

However, the academia should come forward to promote vigorously the need to end impunity through a broad range of initiatives aimed at re-establishing rule of law, a functioning state bureaucracy, and democratic norms. Chilean-American writer, Isabel Allende had written What I fear most is power with impunity, I fear abuse of power and the power to abuse.

“Justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives. Advancing all three in fragile post-conflict settings require strategic planning, careful integration and sensible sequencing of activities” – Kofi Annan. Although we have come a long way, we still have miles more to go.

Justice Mark Fernando had said – “What is required are just persons. Not just Constitutions, just laws or just institutions but right persons and not institutions; because paradise even on earth is not a physical place of material development, but a set of values, fairness, tolerance, non-discrimination and so on”.

Impunity is therefore a governance issue. The remedy is that the political leadership will require the ‘POLITICAL WILL’ to involve effective functioning of all institutions.

It was because the institutions had failed and had broken down, that it had finally given birth to ‘the culture of impunity’. All these, ultimately have benefitted the “haves” at the expense of the “have-nots”, and have led to endless corruption, growing organized crime, drug business, poor economic growth and destabilization of the country. Professor Andrew Scott at Deakin University argues – “More effective political leadership and judgement will be needed to channel these sentiments into policy change”. Shouldn’t the countrymen think we need good leaders – RIGHT PERSONS?